ONTARIO SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 03-CV-245569CM3
DATE: 20120201

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

ANNA JANICE FREEMAN Plaintiff – and – MNJIKANING FIRST NATION and JEAN LEMAY Defendants

Larry J. Levine , Q.C, for the plaintiff
Awanish Sinha and Julie Parla , for the defendants

HEARD: January 9, 10, 11 and 13, 2012

Stinson J.

[ 1 ] This lawsuit concerns a dispute over a name. The plaintiff asserts that she created the name and provided it to the defendants in the context of a commercial proposal she made to them. Although the defendants did not accept the plaintiff’s proposal and instead chose another bidder, they subsequently used the name that she had coined in connection with the retail development they created. The plaintiff acknowledges that she never had a contract with the defendants, but asserts a claim based upon the concept of unjust enrichment or restitution.

[ 2 ] For their part, the defendants deny that the name in question was an original creation as claimed by the plaintiff. Rather, they assert that it is a term that has been used by and associated with the defendant First Nation for centuries and that, if anything, it was one of their members who first told the plaintiff about the term. In any event, they deny that the plaintiff's claim satisfies the prerequisites for relief based on the concept of unjust enrichment. Additionally, the defendants assert that they have derived no commercial or financial benefit through the use of the disputed name.

Background

[ 3 ] The defendant Mnjikaning First Nation ("MFN") is an Indian Band that owns and occupies lands in the vicinity of the village of Rama, Ontario, to the east of Lake Couchiching, near the City of Orillia. At the relevant time, the defendant Jean Lemay was the General Manager, Economic Development for MFN, with responsibility to oversee the businesses owned by MFN, to develop business plans, implement new businesses and act as a business advisor to the Chief and Council of MFN.

[ 4 ] MFN's most significant business enterprise is as landlord to Casino Rama, a large casino gambling and hotel complex located on its lands. The actual casino operation is licensed by the Province of Ontario and the casino, the hotel and the restaurants located on site are operated by a contractor retained by the Ontario Lottery and Gaming Corporation ("OLGC"). A portion of the profits from the casino operation are shared by all Indian Bands in Ontario (although there is a current - and unrelated - legal dispute whether this now includes MFN). As the landlord of the site, however, MFN receives rental and other income from the complex.

[ 5 ] In the wake of the opening of Casino Rama on the MFN lands in the mid 1990s, various entrepreneurs have come forward with a range of business proposals for other developments in the vicinity. In the words of Mr. Lemay, many of these were persons who sought to have their dreams implemented with MFN money, possibly operating under the misapprehension that MFN was the principal recipient of the casino profits. Part of Mr. Lemay's job was to receive and consider such proposals based on such considerations as whether MFN could recoup its investment, whether the proposal offered opportunities for employment and economic development, and whether the proposal was viable.

[ 6 ] Casino Rama originally opened as a casino gambling operation. Subsequently, plans were made to construct a hotel, conference facility and entertainment centre. Part of the plans also included a small retail component (approximately 5,000 square feet), to be constructed as part of the overall casino-hotel complex. Eventually those plans were refined to the point where it was decided to locate three retail shops in the vicinity of the rotunda part of the complex. The plans further contemplated that MFN would lease back the retail space from the operator of the complex and assume responsibility for operating the retail shops.

[ 7 ] Neither MFN nor Mr. Lemay had the experience or expertise necessary to assess the type of retail enterprises, merchandise or customer base appropriate for the location. As a result, Mr. Lemay prepared a formal Request For Proposal ("RFP"). As I will explain shortly, the plaintiff responded to the RFP. Her response and the name proposed by her for the retail area at Casino Rama are at the heart of this dispute.

The relationship between Ms. Freeman and MFN

[ 8 ] The plaintiff Anna Freeman has trained and worked as a real estate agent. She also has experience in political and charitable fundraising. She has no formal training in business consulting, but by reason of her other activities has developed an extensive series of contacts in the business world. Her spouse is a First Nations person and by reason of that relationship and other experience working with aboriginal Canadians, Ms. Freeman has a long-standing interest in the economic development of First Nations.

[ 9 ] At the time of the events in question, Ms. Freeman was working in partnership with a fellow real estate agent, Adele Fulgosi, under the business name Delana Enterprises. Ms. Fulgosi was initially a co-plaintiff in this proceeding, but has since assigned her rights to Ms. Freeman, who has pursued the claim on her own.

[ 10 ] During a visit to Casino Rama in 1999, Ms. Freeman was randomly selected to participate in a survey about potential future development at the site. This prompted her subsequently to make contact with the business development office of MFN, where she came to know Calvin Stone, who was then MFN's Economic Development Officer. Over the next several years she brought a series of potential development projects to MFN, but none of them proceeded.

[ 11 ] In the fall of 2001, Ms. Freeman learned that the defendant Jean Lemay had succeeded Mr. Stone as the Economic Development Officer. According to her evidence, she called him in late November 2001 and he agreed to meet with her. She and her business partner Ms. Fulgosi travelled to the casino and met with Mr. Lemay. There was some disagreement in their evidence as to the genesis of their first meeting, but nothing turns on that dispute. There was, however, a more material divergence in their recollections concerning some of their subsequent interactions. Apart from Ms. Freeman and Mr. Lemay, no one else who was present for their discussions gave evidence at trial.

[ 12 ] According to Ms. Freeman, at their first meeting in November 2001 Mr. Lemay told her that he was working on a project relating to retail space at the casino, for which there was a recently-issued RFP. He indicated that he was dealing with a retail consultant named Andrew Yemen but that Mr. Yemen had no creative people as part of his team. She testified that Mr. Lemay asked her if she had any creative people. According to Ms. Freeman, she said she would talk to a creative contact and see if she could put something together. He gave her a copy of the RFP.

[ 13 ] Ms. Freeman testified that she and Ms. Fulgosi subsequently sought out and met with Rod Della Vedova, a creative consultant in Toronto who advised them they had to come up with a theme and use an “anchor” for their presentation. She testified that she took Mr. Della Vedova to meet Mr. Lemay. In that meeting Mr. Della Vedova remarked that it was strange that no name had been requested or mentioned in the RFP. According to her evidence, Mr. Lemay responded that it couldn't hurt to propose a name in their response to the RFP and added that if she came up with a good one they would certainly use it if her proposal was successful.

[ 14 ] Ms. Freeman and her colleagues proceeded to prepare a response to the RFP. Among other things, they prepared so-called "theme boards” or graphic presentations outlining their proposal. Among other information, the theme boards included a proposed name for the retail venue: "The Gathering Place – The Shops at Rama". According to her testimony, the name was the product of a brainstorming session among herself, Ms. Fulgosi and Mr. Della Vedova. She said they discussed the concept of open places, bringing open places indoors, and the Indian word "Toronto" meaning "a meeting place", realizing that they could not use that phrase. She further testified that she combined the notion of open spaces and meeting place and came up with the phrase “The Gathering Place.” She testified that she had not seen or heard the name "The Gathering Place" before she coined it. Neither Mr. Della Vedova nor Ms. Fulgosi, the other participants in the brainstorming session, gave evidence. Thus, only Ms. Freeman testified about the origin of the name they proposed.

[ 15 ] Ms. Freeman delivered the theme boards to Mr. Lemay before Christmas 2001 and left them with him. According to her, he complimented her on the boards, but told her she needed to improve the written submission. He told her she could call him and that he would work with her in order that she could prepare a more persuasive submission by the deadline of January 8, 2002.

[ 16 ] On January 8, 2002, the three competing bidders who responded to the RFP made oral presentations to MFN's selection committee. According to Ms. Freeman, her team's presentation was well received. The Chief of MFN said that they did very well and added "I like the name". Subsequent to the meeting Ms. Freeman spoke to one of the representatives of MFN who asked her to prepare a corrected submission by the next day. Before she could complete and submit it she learned from Mr. Lemay that MFN had selected one of the other bidders. She was upset and disheartened. On January 10 she attended at MFN's office and picked up her materials, including the theme boards.

[ 17 ] Ms. Freeman further testified that she subsequently learned, in mid-February 2002, that her theme boards were being used to secure retail space at the casino. She was disappointed and upset and called Mr. Lemay to complain, who responded that he could do what he liked. Ms. Freeman told him that he could not use any of her material. In her words they "agreed to disagree". She sent him a letter reiterating her complaint, in which she asserted that the concept, theme and name were the intellectual property of Delana Enterprises, adding that any use of the name "will be deemed as an unethical business choice". Although Ms. Freeman received no response from Mr. Lemay, she did receive a call from Rick Morano, the Chief Financial Officer of the defendant, who said he would look into the matter and refer it to the Chief. When she heard nothing further, Ms. Freeman called the Chief directly and was told she would get back to her if the defendant used her material. She heard nothing further.

[ 18 ] In September 2002 Ms. Freeman attended at Casino Rama to see how the new retail space looked. According to her, she saw elements of her proposal everywhere. The defendant had named the retail area "The Gathering Place – The Collections at Rama". She was very upset and felt betrayed. She subsequently consulted legal counsel and, in due course, this action was commenced. As originally constituted, the action included allegations of misrepresentation, conspiracy, conversion and wrongful interference with economic relationships, perhaps reflecting the level of dismay felt by Ms. Freeman. By the time the case reached trial, however, the sole cause of action advanced was unjust enrichment or restitution.

(Decision text continues exactly as provided.)